Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Occupational Safety and Health Convention, 1981 (No. 155) - Mexico (Ratification: 1984)

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes the observations of the National Union of Workers of the Federal Roads and Bridges Access and Related Services (SNTCPF), received on 30 August 2015. The Committee requests the Government to send its comments in this respect, and also on the observations of the SNTCPF received on 1 September 2014.

The Committee is following up on the recommendations made by the Governing Body in March 2009 (document GB.304/14/8) further to the accident that took place at the Pasta de Conchos coalmine in Coahuila.

I. Measures to be taken in consultation with the social partners

Articles 4(1) and (2), and 7 of the Convention. National policy. Overall reviews or reviews relating to specific areas: hazardous types of work such as those performed in the coalmining sector.

(a) Register of reliable data on existing mines and workers in these mines

Background. The Committee recalls that in its previous comments it asked the Government to supply up-to-date information on the number and type of mines in the Coahuila region, including: (1) information distinguishing between registered and non-registered mines; (2) the estimated total number of miners in Coahuila; (3) the number of registered miners; and (4) the estimated number of non-registered miners.

2015 report. The Committee notes the information supplied by the Government in its report. In relation to registered and non-registered mines, it sent a table indicating 20 members of the Registered Coal-Producing Unions which have registered 28 mines and small-scale mines (pozos). It also listed ten non-registered workplaces. The Committee observes that the Government indicated in 2012 that as of May 2012 there were 2,463 concessions in the state of Coahuila, including 970 coalmines of which 297 were small-scale mines or vertical shafts; of these, 149 had been inspected. In 2011, the Government stated that there were 909 mining concessions, including nine large and 62 medium-sized coalmines, in addition to the 297 vertical shafts in which activity had been detected. The Committee notes with regret that it does not have any precise and comparable information enabling it to make progress in its examination of the effect given to these Articles of the Convention in coalmines in Coahuila. As regards the number of miners and the estimated number of non-registered miners, the Committee notes that the Government states in its report that the estimated total number of miners in Coahuila is 41,290, of whom 12,398 are employed in coalmines, but that it provides no information on the estimated number of non-registered miners. The Committee reiterates that it is essential to have precise information in order to adopt effective preventive occupational safety and health policies and measures in order to prevent any recurrence of the Pasta de Conchos and subsequent accidents which the Committee has noted, the last of which was the accident at the Boker small-scale mine (pocito), where two miners died on 27 March 2014. The Committee therefore once again requests the Government to supply information on the number and type of mines in Coahuila, including: (1) information distinguishing between registered and non-registered mines; (2) the estimated total number of miners in Coahuila; (3) the number of registered miners; and (4) the estimated number of non-registered miners.

(b) Accidents in the coalmining sector

The Committee recalls that in its previous comments it asked the Government to supply statistical information on the number of occupational accidents in the coalmining sector, particularly in Coahuila, indicating the numbers of accidents and victims between 2010 and the time of preparation of the next report, distinguishing between accidents occurring in small-scale mines and those in medium-sized or large mines. The Committee notes that the Government appended a table to its report which, the Committee observes, indicates 24 occupational accidents in mines in Coahuila and 28 worker deaths in those accidents between 2010 and 2014. This information differs from the information provided by the Government in its 2012 report, according to which there had been 31 deaths in 2010, and from the communication that year from the SNTCPF, stating that, between June 2010 and August 2011, another 33 miners had died in occupational accidents, including 26 in Coahuila; that 14 miners had died on 3 May 2011 at “Pozo 3” of the BINSA company and that none of these 14 were registered with the Mexican Social Security Institute (IMSS). Noting the differences between the respective data provided, the Committee once again requests the Government to provide detailed accurate statistics which are comparable with those provided in its previous reports, on the number of occupational accidents in coalmines, particularly in Coahuila, indicating the numbers of accidents and victims from 2010 to the time of preparation of the next report, distinguishing between accidents occurring in small-scale mines and those in medium-sized or large mines.

(i) Small-scale mines, small-scale slope mines and cave mines. In its comments in 2014, the SNTCPF indicated that since the Pasta de Conchos accident, at least 107 more miners had died so far as a result of precarious, illegal and unsafe conditions. The Committee notes that the SNTCPF, in its 2015 comments, states that most of the miners died in small-scale slope mines (minitas de arrastre) and that small-scale mines, small-scale slope mines and cave mines (cuevas) are, in themselves, perverse structures for coalmining since there is no safety equipment for miners to use. According to the union, the emergence of these substandard forms of mining stems from the impunity prevailing as a result of the failure to impose adequate penalties on those responsible and this has an impact on a number of areas covered by the Convention, such as statistics and social dialogue. In this regard, the union also states that in 2013 a ban was imposed on vertical shafts up to 100 metres deep. The union questions why such shafts are regarded as being safer beyond a depth of 100 metres. The Committee requests the Government to send its comments on this matter, to provide information on all legislative and practical measures taken to tackle the proliferation of these precarious mines and to indicate the reasons why vertical shafts more than 100 metres deep have not been prohibited.

(ii) Boker mine and Charcas mine in San Luis de Potosí. In its previous comments, the Committee noted the reference to two particular cases by the SNTCPF. The first concerned the Boker small-scale mine, where two coalminers aged 19 and 21 years died on 27 March 2014 as a result of falling to the bottom of the mine when a cable taking them to a depth of over 85 metres broke. According to the union, the mine did not have an emergency exit; it had been inspected on ten consecutive occasions, but when the Secretariat of Labour and Social Security (STPS) withdrew, it continued to operate without any safety measures. The Boker mine closed, and then re-opened as an emergency exit for a new small-scale mine. The second case concerns the Charcas mine in San Luis de Potosí, at which five workers died on 12 February 2014, despite the fact that the mine had been inspected four times and violations of safety and health standards had been reported. Noting that the Government has not provided the requested information on this matter, the Committee once again requests the Government to indicate whether the labour inspectorate detected situations of imminent and serious danger to the safety of the workers in the mines referred to above, and also specify the reasons why these mines were not closed, or why other immediately enforceable measures were not taken.

Investigations. In its previous comments, the Committee asked the Government to provide information concerning the investigations conducted in relation to Article 11(d) of the Convention, including on the accidents that occurred at the Ferber mine and Lulú small-scale mine. The Committee notes that the Government repeats information relating to the recommendations made by the National Human Rights Commission (CNDH), but does not indicate whether the competent authorities ensure that investigations are carried out into mining accidents in Coahuila, as required by this Article of the Convention. The Committee notes that the SNTPCF, in its observations of 2015, makes a renewed call for the bodies of the dead miners to be recovered and for an investigation to be conducted, and alleges that recovery operations have taken place in all coalmining accidents with the sole exception of two cases where the mines were the property of the Mexico group, namely the Pasta de Conchos and “Mina 6” mines. The Committee once again requests the Government: (1) to indicate whether investigations are held, in accordance with Article 11(d) of the Convention, whenever occupational accidents – in this case in the coalmining sector in Coahuila – appear to reflect serious situations, and if such investigations are held also to report the findings of such investigations, particularly relating to the causes of such accidents; and (2) to indicate the measures taken to prevent accidents on the basis of the findings of the investigations. The Committee also requests the Government to send its comments on the observations of the SNTCPF.

Reviews relating to specific areas. In its previous comments, the Committee noted that the purpose of periodic reviews of the situation relating to the safety and health of workers and the working environment in coalmines in Coahuila, including small-scale mines, is, in accordance with Article 7 of the Convention, to identify the major problems, propose effective methods to deal with them, set priorities for action, and evaluate the results, and it asked for information on the application in Coahuila of this Article in conjunction with Article 4 of the Convention. The Committee notes the Government’s statement that: (i) the Safety and Health Advisory Subcommittee for the Coahuila coalmining region conducted a study entitled “Analysis of past occupational risks and their consequences in the Coahuila coalmining region 1995–2011”, which was approved on 9 August 2011; (ii) the study shows that there is a serious situation in the Coahuila coalmining region in terms of occupational accidents, especially because incidents involving worker fatalities recur on a cyclical basis; (iii) some indicators (for example, concerning the number of occupational accidents and the number of days lost) show that the efforts made have yielded results, but the study recognizes that the number of fatalities is an indicator that tends to increase in certain years, as was the case in 2011; (iv) mining in Coahuila represents the economic activity with the highest incidence of occupational risks; (v) the study concluded that although accident rates have improved, prevention needs to be reinforced; and (vi) the State Occupational Safety and Health Advisory Committee for Coahuila includes members of the most representative employers’ and workers’ organizations and it specifies what these are. Noting that this information has not been updated and does not fully meet the objectives of Article 7 of the Convention, the Committee once again requests the Government to provide information on the following issues which, in accordance with Article 7, constitute the purpose of such reviews: (a) the major problems identified; (b) the methods proposed to resolve them; (c) the priorities for action; and (d) the evaluation of the results, in relation to the occupational safety and health situation in the coalmining sector in Coahuila.

Article 9. Adequate and appropriate system of inspection. In its previous comments, the Committee asked the Government to indicate the measures of immediate enforcement currently at the disposal of the labour inspectorate, and to indicate clearly whether closure could be immediately enforced by inspectors in the case of imminent danger to the health and safety of workers. The Committee notes the Government’s statement that these measures and the imposition of penalties have been strengthened through the new General Labour Inspection Regulations of 2 June 2014. The Committee notes that, in the event of an imminent risk, section 343-D of the Federal Labour Act, as amended in 2012, empowers inspectors to order the total or partial suspension of the activities of the mine, including restricting workers’ access to the workplace pending the adoption of the necessary safety measures to prevent any accident. The Committee also observes that, if the employer refuses to receive the labour authority, section 39(4) of the abovementioned Inspection Regulations provides that the inspector must record this fact in a report which must then be sent to his or her hierarchical superior with a view to requesting, within 72 hours of its receipt, assistance from the police in order to conduct an inspection. The Committee requests the Government to take the necessary measures to ensure that, in the event of a refusal by the employer to receive the labour authority, the labour inspectorate can order the immediately enforceable measures that are necessary for protecting the health and safety of the workers with regard to a situation of imminent danger or risk.

Furthermore, the Committee notes that the SNTCPF alleges in its latest observations that a further reduction has been made in the budget allocated to the STPS and that inspectors have no budget for work equipment, that facilities are deplorable, that five or six people work in a space of 9 m2 and that no vehicles are assigned to inspectors for the performance of their duties. The Committee requests the Government to send its comments on this matter.

II. Other measures

The Committee recalls that, in paragraph 99(c) of the report on the representation concerning the accident at the Pasta de Conchos mine (document GB.304/14/8(Rev.)), the Governing Body invited the Government: “(c) … to ensure, considering the time that has lapsed since the Accident, that adequate and effective compensation is paid, without further delay, to all the 65 families concerned and that adequate sanctions are imposed on those responsible for this Accident”.

Pursuant to this recommendation, the Committee is examining the following points:

Compensation – pensions. Referring to its previous comments, the Committee notes the Government’s indication that the STPS has made payments to 61 claimants, in accordance with the rulings issued by the competent judicial authority. Moreover, the Government indicates that those affected had recourse to the Federal Court of Fiscal and Administrative Justice to claim payment from the STPS on the grounds of state liability and that, in compliance with the ruling, compensation of 647,600 Mexican pesos (MXN) was paid to a surviving dependent child. The Committee, for its part, notes the statement by the SNTCPF that in the Pasta de Conchos case, the pensions awarded to the families were not based on full wages but on what was decided by the Government, which argued that it could not be done differently. However, the SNTCPF adds that, in the case of the explosion at the BINSA mine, it was decided that even the families of workers who were not registered with the IMSS, and who should therefore not be considered as insured persons having a pension entitlement, were registered with the IMSS after the accident and on the basis of the real wages paid. Accordingly, the families are entitled to pensions of over MXN10,000 while the family members of the Pasta de Conchos victims were left with pensions of MXN1,200–3,000. The union also indicates that families affected by different accidents have received unequal treatment. The Committee requests the Government to provide information on the reasons for this difference in treatment with regard to pensions. Taking account of the union’s claims that the families of certain victims have received pensions in line with the real wages paid, it also requests the Government to take all possible steps to give fair treatment to the family members of the victims of coalmining accidents, taking due account of the family members of the Pasta de Conchos victims, and to supply information in this respect.

State and social benefits. In its previous comments, the Committee asked the Government to indicate how many of the 65 families of the deceased miners had received assistance with respect to access to housing. The Committee notes that, according to the Government, loans were offered to eight widows but the latter did not indicate any interest. The Office of the Federal Prosecutor for Labour Protection administered the donation of housing in three cases. The Committee requests the Government to provide information on this kind of benefit for family members of the victims of the Pasta de Conchos accident, including with regard to the educational trust, and requests it to indicate how many of the 65 families have received assistance with respect to access to housing.

Dialogue with the Pasta de Conchos families. In relation to its previous comments, the Committee notes the Government’s indication that on 11 May 2013 the Minister of Labour and Social Welfare received the Governor and the families of the deceased miners and it was agreed to maintain ongoing contacts. The Committee notes the indication by the SNTCPF that the Federal Inspection Directorate of the STPS had recognized a person from the Pasta de Conchos Families Organization as an expert in the field with participation in labour inspections, and that from March 2015 the situation changed and the key for gaining access to the system was also withdrawn from that person. The union maintains that the Pasta de Conchos Families Organization had helped to reduce accidents from 2013 onwards but the collaboration had been interrupted due to these events. The Committee requests the Government to send its comments in this respect.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2017.]